She’s old enough to get birth
control: in Oregon, anyone can get birth control or treatment for
sexually transmitted diseases (STDs). But she can’t
drive herself to Planned Parenthood because she can’t
get her license until she is 16. And, at 14, although she’s having sex
with Conner, she’s too embarrassed to talk to him about birth control.

Not
surprisingly, Brittany gets pregnant. Under Oregon law, she’s not old enough
to marry Conner, even if her parents consent. But she is old enough to decide
whether to have an abortion, place her baby for adoption or keep it.

Brittany
opts for abortion. She wishes Conner could go to the clinic with her, but he’s
now in jail, convicted of having sex with her when he is more than three years
older. So Brittany consoles herself by sneaking a few beers from her parents’ fridge:
at 14, it will be seven years before she can drink legally.

In the last few years, even Oregonians who aren’t
working with or raising adolescents like Brittany have become aware
that "when is a child not a child" — for the purpose
of acquiring a legal right or responsibility — can be a confusing
and controversial issue.

For example, in February 2007, the Yamhill County District
Attorney’s Office attracted nationwide attention when it filed
felony sex abuse charges in juvenile court against two 13-year-old
boys for "butt-slapping" female classmates.

Some experts maintained that the boys were too young
to understand the potentially criminal nature of their conduct. But
a year later, in a child-custody case, the Oregon Supreme Court ruled
that another boy — who was a year younger — had
the right to be consulted on whether he wanted to be circumcised as
part of his conversion to Judaism.

"Some of the ages at which juveniles acquire rights
and responsibilities appear in juvenile law, some in domestic relations," observes
Julie McFarlane, supervising attorney of the Portland-based Juvenile
Rights Project. "So they’re all in different courts. You
get these decisions that don’t go together very well."

University of Oregon School of Law professor Leslie Harris,
who wrote the bar’s Juvenile Law CLE’s chapter on the rights
of children and adolescents, says, "People try to figure out if
there’s a rationale for the different ages, and if it’s
a consistent rationale. But any argument that there’s some kind
of master plan, is wrong."

Evolution
of the Age ConceptsBehind the different ages are two distinct
legal concepts: the "age of majority" and the "age
of license."

"Age of majority" is the age at which a parent’s
legal control over, and responsibility for, his child ends. It’s
so-named because — as the online encyclopedia Wikipedia puts
it — "There are some things in life (such as death) over
which no person has any lawful control. So one assumes ‘majority
control’ over one’s life at the age in question, instead
of ‘full’ control…"

In the United States, the age of majority, except for
purposes of federal law, is set by the states. In Oregon, it is 18,
although legal emancipation by the court, which here can take place
at age 16, automatically confers the status of majority.

The common-law age of majority, says McFarlane, was 21
going as far back as the 13th century. But many states, including Oregon,
statutorily changed it to 18 in response to the drafting of 18-year-olds
to fight in Vietnam. "If they are considered old enough to be
drafted to fight and die for their country, they should be considered
old enough to vote,’" McFarlane says of the argument of
the time.

The other legal concept, "age of license," is
the age at which government gives someone legal permission to do something,
such as work, drive, vote and drink. It can be lower than the age of
majority (in Oregon, nine-year-olds can pick berries or beans) or higher
(21 has been the legal drinking age in all states since the federal
government tied the availability of federal highway money to a drinking
age of 21.)

Harris says that the ages Oregon has set for various
rights is the result of social policies, history, arbitrary decision
making and politics.

"Some of the inconsistencies — i.e., the one
about treatment for STDs at any age without parental consent — are
explainable as recognizing that kids may be very reluctant, to put
it mildly, to reveal their need for this to parents," says Harris.

"Some of the inconsistencies are just that you need
an age," she continues. "Any age. I don’t know why
we permit kids to get learners’ permits at 15 and licenses at
16. If the availability of federal highway money was tied to 21 for
driving — as it is with drinking — all of the states probably
would raise the age for driving to 21.

"And the rule for child labor (which allows children
as young as nine to be employed as produce pickers in Oregon under
certain conditions) most likely comes from an earlier time, when we
were tied to an agricultural economy. It’s a historical relic."

Until the turn of the 20th century, children were allowed
to work all kinds of jobs, including in mines and factories. But then
laws were passed that, among other things, required mandatory school
attendance and restricted child labor.

"The notion was that children would be completely
protected by adults and wouldn’t need rights of their own," says
McFarlane of this reform legislation.

Then, in 1967, in In re Gault et. al., (387 U.S.
1), the U.S. Supreme Court held that juveniles charged with crimes
in juvenile court are entitled to many of the same due process trial
rights that the 14th Amendment guarantees to adults. These include
the right to confront witnesses, the right against self-incrimination
and the right to counsel.

McFarlane notes that Gault marked a turning point
in how adolescents were viewed by the law.

"From that point on, lots of states passed laws
relating to medical care, abortion and — quite a bit later — mental
health care," she says. "Kids were given rights and became
involved in making decisions on their own."

But Harris says the current state of the law doesn’t
tell the whole story.

"Lowering the age of majority in the ’70s
to 18 definitely increased thinking of kids as autonomous and having
the right to make their own decisions," she says. "But in
some way, teens are treated less as adults now than they were 100 years
ago. Now, we think 18 is young to be on your own, but it used to be
that many kids quit school after 8th grade and started out on their
own. In the economic realm, at least, childhood definitely is being
prolonged."

Adolescent
Brain ResearchThe statutory ages for the acquisition of juvenile rights
and responsibilities were set long before research into adolescent
brain development.

Brain research with modern neuroimaging techniques that
allow a living brain to be studied without damaging it began in the
early 1990s with babies and toddlers.

That research led to the conclusion — which some
experts said was erroneous — that the only critical stage in
brain development is pre-birth to age three.

"If your child was not exposed to the right things
in the first three years, you were terribly out of luck," says
McFarlane. "Politicians really bought into it. They invested money
in the birth-to-age- three population and stopped investing in teens."

But, as those babies and toddlers began to grow up and
researchers continued to study their brains, they learned that there
is another significant stage of brain development.

McFarlane says this research showed that the prefrontal
cortex — the part of the brain that controls foresight, planning
and judgment — isn’t fully developed in females until the
ages of 22 to 23 and in males until 25 to 27.

"Some people say even later," says McFarlane,
who says the difference between males and females is the result of
sexual hormones.

Until that development is complete, says McFarlane, teenagers
are controlled by another part of their brains, the amygdalae, which
are two small brain structures that produce emotion.

"We have kids who are exercising very poor judgment," McFarlane
continues. "To a kid, controlled by his amygdalae, what
friends think is very important. That controls over judgment. Why does
one kid have problems with judgment and not another? Some of it is
luck and some of it is situational: not being exposed to poor choices.
And some kids do have more judgmental ability."

McFarlane has used brain development research both in
juvenile delinquency cases and to train those who work with children
who are "aging out" of foster care at 18.

"When you’re 18, you’re not necessarily
an adult, brain-wise," she says. "Foster kids are the least able
to care for themselves at 18. Kids who grow up in foster care are educationally
delayed, and their (life) experiences may have caused developmental
delays. Other kids don’t leave home at 18. It’s unfair,
when we’ve taken away all of their (foster kids’) family
ties, to say, ‘Now you’re on your own.’ A system
that’s set up to set those kids free at 18 is pretty flawed."

McFarlane says that even if the foster care system has
not adjusted to the reality of brain development, the U.S. military
has.

"For years, letting kids who messed up into the
Army was seen as a solution," she says. "Now the military
doesn’t want them. There’s a serious war, and they (juveniles)
don’t have the judgment. The military has discovered the same
thing as brain researchers: they don’t want to put a gun in the
hand of someone with an undeveloped prefrontal cortex.

"I think how we’ve set the age of majority
for different things is really political," McFarlane concludes. "If
we consulted social scientists, we wouldn’t be setting the ages
we are."

Measure
11: Juvenile Court or Adult Court?One of the most political
of those decisions, in McFarlane’s
view, was Measure 11.

Prior to 1994, a juvenile under 18 who allegedly engaged
in criminal behavior in Oregon could be handled informally — i.e.,
by issuing him a warning or referring him to an appropriate community
agency — or formally, via the filing of a delinquency petition
in juvenile court.

Those whose cases were handled in juvenile court had
the due process rights that were guaranteed by the Gault decision,
which did not include the right to bail or trial by jury.

If the juvenile court judge or referee found the criminal
charges in the petition to have been proved, the juvenile could be
put on probation or sentenced to a juvenile correctional facility.

In some cases, the juvenile could be sent to adult court
for trial, but only after the juvenile court judge or referee had found
that to be the proper venue for that particular juvenile and crime.

Then, in 1994, Oregon voters approved Measure 11 by the
overwhelming vote of 788,695 to 412,816.

The measure, which was sponsored by Crime Victims United
and then-state Rep. Kevin Mannix, set mandatory minimum sentences for
adults convicted of certain serious crimes. It also requires all juveniles
15 and over who are charged with those crimes automatically to be tried
and sentenced as adults.

"Why does Oregon have this law?" the Juvenile
Services Division of Multnomah County’s Department of Community
Justice posted on its website after the measure was adopted. "Many
people in Oregon voted to make Measure 11 a law because: THEY ARE tired
of crime (and) tired of ANYONE (including juveniles) getting away with
crime. THEY WANT TO feel safe; be safe from violent crimes (and)
put in prison ANYONE (including juveniles) who commit certain crimes."

The division’s message — with its attention-attracting
capitalization and boldface — was directed to readers who are "almost
15, 15 or older."

According to McFarlane, Measure 11 passed just as brain
research on teenagers was beginning.

"Certainly there was discussion (about such research)
among those who work with and know teens," she says, "but
Measure 11 passed overwhelmingly."

Yamhill County Deputy District Attorney Debra Markham,
who handles both delinquency cases in juvenile court and Measure 11
prosecutions of juveniles in adult court, says that the measure was
the public’s response to seeing juveniles committing more and
more serious crimes.

"In the ’70s and ’80s, we began to see
kids involved in fairly organized gang activity," says Markham. "People
were being shot."

Still, Markham says, even jurors who statistically are
likely to have voted for Measure 11 aren’t necessarily comfortable
with it when it has a human face.

"My experience with Measure 11, if trying a juvenile
in adult court, is that jurors come in and say, ‘Why is this
boy being charged as an adult?’ And I say, ‘Because he
killed someone.’"

Mike Dugan, who has been district attorney in Deschutes
County for over 20 years, says, "I took a position on Measure
11 in ’94. I was opposed to it because of its exorbitant cost.
I have changed my position as it relates to adults; I think it’s
been helpful in reducing violent crime generally."

But, he says, his office takes a "very narrow" approach
to which juveniles and offenses it pursues under Measure 11. "Fifteen,
16, 17-year-olds: many of them are pretty young, both age-wise and
maturity-wise," he says. "And many offenses are not appropriate
to send to a state training school for the length of time required
under Measure 11."

Klamath County District Attorney Ed Caleb, who says he
believes the measure passed because of the amount of gang activity
at that time, concurs.

"It could have been a disaster," says
Caleb. "It hasn’t been, because most DAs take it very, very
seriously. I doubt if we’ve done a dozen Measure 11 juvenile
cases (since 1994)… mostly serious sex offenders or somebody
involved in gang activity. Most of the DAs I know are not comfortable
sending juveniles to a state training facility under Measure 11."

Butt-SwattingYamhill deputy
D.A. Markham is most familiar with the public’s response to the law’s
pursuit of juveniles because of a case that didn’t involve
Measure 11 or adult court: McMinnville’s "butt swatting" case,
which she prosecuted.

In that case, two 13-year-old boys — too young
for Measure 11 — initially faced petitions in juvenile court
alleging that they had committed felony sexual abuse in the first degree
by swatting female classmates’ bottoms. They also were accused
of touching two girls on their breasts.

If the charges had been proven, the boys could have had
a lifelong obligation to register as sex offenders and could have been
sentenced to 10 years in a juvenile correctional facility.

The charges, which later were reduced to misdemeanor
sexual abuse in the third degree, and related charges of harassment,
ultimately were dismissed by the court after the girls and their families
signed acknowledgements of satisfaction and Markham joined the boys’ attorneys
in a motion to dismiss.

But before that happened, the case drew national attention,
and the Oregonian editorialized against the Yamhill County District
Attorney’s Office’s decision to pursue the case.

Markham, who declined to comment on the case, acknowledges
that adolescents’ ability to control or even understand their
behavior may be different from that of adults.

"Teens, by their very nature, are volatile," she
says. "They don’t think things through. You can’t
necessarily attribute to them the same level of understanding and thoughtfulness
as you would to a 30-year-old. Adolescence is a time of testing limits.
They want to drive too fast, drink too much; they’re exploring
their sexuality. All of these things are a cauldron that brings them
into conflict with the law."

Markham says that when crimes committed by juveniles
are pursued in juvenile court, the law mandates that the court consider
the best interest of the child and the least-restrictive dispositional
alternative that is consistent with public safety.

To determine what that is, she says, her office looks
at several things.

"In any case, we start by looking at the behavior," she
says. "In some instances, it’s very clearly criminal; in
others, it may not be. Sex crimes, particularly given the way the law
is written (with regard to intent), can be one of those. We’ve
all met 12-year-olds who were very different in terms of their level
of maturity. You can have an 11-year-old who is far more savvy and
delinquent than some 12-, 13-year-olds."

Markham says that her office also consults with experts.

"For example, with sex offenses, we try to have
a psychological/sexual evaluation to determine if the juvenile is amenable
to treatment and treatment in the community," she says. "This
is a problematic situation because when charges are pending, there’s
some concern, on the part of the defense, about having the youth talk
about the offense. They may not have reached a decision about whether
to try the case or admit (the allegations). If they give you an evaluation,
it’s probably favorable to them. If they don’t, it’s
probably not favorable. In most cases, we do see evaluations and use
them in decision making."

McMinnville lawyer Mark Lawrence, who represented one
of the 13-year-olds in the "butt-swatting" case, says research
on adolescent brain development played a role in it.

For example, he says, the juvenile court judge suppressed
statements that both boys had made to a police officer after Portland
forensic neuropsychologist Robert Stanulis testified.

"The officer didn’t take the time to explain
Miranda rights," Lawrence says. "At that age, they have no
idea what they mean. The officer has to ask follow-up questions; i.e., ‘What
does the right to a lawyer mean?’ When they ask those questions,
kids answer all kinds of goofy things."

Lawrence says that had the case gone to hearing, Stanulis
also would have testified about how the boys’ incomplete brain
development affected their ability to form criminal intent.

"At that age, your hormones are high; your judgment
and ability to control yourself are low," says Lawrence, who was
a deputy DA in Yamhill County under former DA John Collins, now the
juvenile court judge who heard the "butt swatting" case. "Kids
at this age are developing sexual desires. Last year, young ladies
grossed them out; this year, they’re kind of interesting. But
they don’t know how to express feelings, so they kick and poke
each other."

Lawrence, who says that his juvenile caseload has jumped
since the case was publicized, says "there’s a vast difference" in
how different district attorneys’ offices handle such juvenile
conduct.

"It even differs from one deputy DA to another in
the same county," he says. "They seem to be making decisions
based on their own predilections and experiences. The DAs are trying
to make good decisions, are not being malicious, but the decisions
are not thought out. The problem is prosecutors who look at behavior
in a vacuum. You have to look at it from the kid’s perspective."

Lawrence also complains that the school his client and
the other 13-year-old attended never went through a non-criminal process
before it involved the police and the district attorney’s office.

"They never told the boys not to do that," he
says. "The school’s perspective was that would seem weak.
That makes no sense."

Child
Custody"M" Boldt was nine years old when his noncustodial
mother and custodial father began their third custodial dispute, this
one over the issue of circumcising "M" as part of his purported
conversion to Judaism.

He was 12 years old when the Oregon Supreme Court ruled,
in January 2008, that the trial court had erred in failing to determine
whether he wanted to be circumcised, as his father contended,
or did not, as his mother alleged.

In its ruling, the court concluded that the decision
to circumcise a male child generally falls within a custodial parent’s
authority.

But, it said, in this case, "M’s" mother
had maintained that "M" was opposed to being circumcised.

"In our view, at age 12, M’s attitude regarding
circumcision, though not conclusive of the custody issue presented
here, is a fact necessary to the determination of whether mother has
asserted a colorable claim of a change of circumstances sufficient
to warrant a hearing concerning whether to change custody," the
court held. "That is so because forcing M at age 12 to undergo
the circumcision against his will could seriously affect the
relationship between M and father, and could have a pronounced
effect on father’s capability to properly care for M."

"M’s" father, who represented himself,
had argued that although his son wanted the procedure, "M’s" wishes
were "legally irrelevant."

"If the legislature had wanted a male child to have
a say in whether he is circumcised," the court quoted the father
as arguing, "it could have adopted a statute to that effect, as
it has done in other statutes such as…giving minors the right
to consent to treatment for venereal disease without parental consent."

"M’s" mother had argued that a custodial
parent does not have the absolute right to have elective, non-medically
necessary surgery performed on a child, asserting that "…there
is no more important decision to make for a male child than to require
that the child undergo permanent modification of his body..." Boldt
and Boldt, 344 Or 1, 176 P3d 388 (2008)

Willamette University College of Law Prof. Kathy Graham,
who teaches domestic relations, says she doesn’t see Boldt as
giving a 12-year-old the right to make a medical decision. (Under Oregon
law, the age at which juveniles can consent to medical treatment without
parental consent is 15.)

"The court was looking at it more from the prospective
of whether he (‘M’) is really converting to Judaism," says
Graham. "They’re looking to see what the child’s beliefs
are, whether he’s following the beliefs of Judaism."

Prof. Harris agrees that the central issue was child
custody, not the medical decision itself.

"They didn’t say the kid had the right to
decide," she says. "Some judges say the last thing
they want, in custody cases, is to hear from the kids; they don’t
think kids should be put in that position. So Boldt is inconsistent
with what some judges think."

According to Multnomah County Family Court Judge Susan
Svetkey, "There’s no statute or case law that states
an age at which a child gets to decide — or that requires the
court to take the child’s preference into account — with
regard to custody matters."

In addition, Svetkey points out that while Oregon law
allows the court to appoint counsel for children in a child-custody
dispute, "There’s nothing anywhere that defines what that
lawyer can do or how to fulfill his job."

"There’s an enormous dispute, among practitioners
and law professors, as to what that lawyer’s role is," says
Svetkey, who also runs Multnomah County’s pro bono Juvenile Representation
Program. "Should it be the child’s best interest, or client-directed
representation? There are lots of model rules, but none have been adopted
in Oregon. So if the lawyer advocates the child’s preference,
the older the child is, the more weight the court might give that preference,
but it’s not absolute. In many cases, what the child wants is
not necessarily a good choice, i.e., ‘I want to live with dad
because he has no rules and lets me drink beer.’"

Svetkey notes that while she believes "The child’s
preference is something the court can and should take into account,
it’s not one of the statutory criterion for deciding custody."

"In many counties in this state," she says, "judges
don’t think children should have lawyers."

Sex,
Birth Control, Abortion, MarriageBrittany, the 14-year-old
with whom this article began, isn’t entitled to have a lawyer — or anyone else — help
her make the tough decisions in her life.

Even if her boyfriend wasn’t in jail, she can’t
marry him in Oregon — even with her parents’ consent — until
she is 17. (In Massachusetts, girls as young as 12 can marry with parental
or judicial consent; in Puerto Rico, the age is 21.)

But if Brittany had decided to have her baby, she could
have made decisions for its medical care (except to the extent that
they conflict with Oregon law barring faith healing as a defense to
certain crimes). She also could have agreed to the child’s adoption.

"If a teenager is a parent, she can make medical
decisions for her child, even if she isn’t old enough to make
the same decision for herself," says Dr. Ron Marcum, corporate
compliance officer for Oregon Health & Science University. "It
doesn’t happen very often, but it does happen."

Harris says that "The rule about a child having
the right to make decisions regarding his/her child, regardless of
age, is practical."

"You don’t want to be tracking down grandparents
to get consent to medical treatment," she says. "And would
you really want a world where the teen mom wants to give up the baby
for adoption and her parent can thwart it? Forcing parenthood on anyone
is a bad idea, I think."

Had Brittany kept her baby, she wouldn’t have been
able to get a credit card at Babies ’R Us: Oregon follows the
common-law principle that an unemancipated minor lacks the capacity
to enter into an enforceable contract, and the minimum age for emancipation
here is 16.

But she could have, if she could afford it, contracted
for housing and utilities under another Oregon law that allows unemancipated
minors who also are custodial parents to enter into binding contracts
for these necessities.

If she couldn’t afford housing, she would have
needed to ensure that she and her baby were off the street at night.
Oregon’s curfew law bars anyone under 18 from being in a public
place between midnight and 4 a.m., unless a statutory exception applies,
and there is no statutory exception for juveniles who have exercised
bad judgment, regardless of what causes them to do so.

"Teens experience emotions very intensely, and they
are more important to them," says the Juvenile Rights Project’s
McFarlane, who has been working with, and advocating for, juveniles
for 30 years. "You can say to them, ‘The likelihood is you
won’t be going with this boy in 10 years.’ But they don’t
have the ability to see that. What they do have are big, strong amygdalae
telling them, ‘This is it, no one else has ever had this experience.’ Then
they’ll come back in their 20s and say, ‘I was so wrong
about that.’"

ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980.
She is a frequent contributor to the Bulletin.